Wednesday, 16 March 2011

Even the Judiciary Are Concerned At National's Rush to Abolish Fair Trial Rights

Even the the judicairy don't like what National is doing.The proposed changes in the Criminal Procedure (Reform and Modernisation) Bill before the committee requires the defence to disclose their defences - including any issues in dispute - to the prosecution in advance of a trial. Not doing so means the judge or jury could take an adverse view of the defendant & could also lead to sanctions against the accused & their lawyer. As it stands, this bill revokes some of our fundamental rights within the justice system and is inconsistent with the Bill of Rights on a number of counts. National's changes include the removal of your right to be present at your own trial and allow for the re-trial of those already acquitted. The bill also does away with your right to remain silent and your right to be presumed innocent until proven guilty by shifting the onus of proof from prosecution to defence. The bill erodes the right to elect trial before a jury of your peers. Therefore reduces community involvement in criminal justice deliberations, hence removes some of the ‘common sense’ from our decisions about crime and punishment.

The constitutional importance of the protective function of the right to trial by jury, as opposed to trial by judge alone received recent ventilation by the Chief Justice in her judgement in Siemer v Solicitor General [2010] NZSC 54:

"The Importance of Trial by Jury
[19] At this point it is necessary to consider the importance of the right to trial by jury in the criminal process. The primary and most important function of the jury in a criminal trial is to determine the relevant facts of a case and to apply the law to reach a verdict of guilty or not guilty. In exercising that function jurors bring a diverse range of perspectives, personal experiences and knowledge to bear in individual cases which judges may lack. As fact finders, jurors determine which of the admissible evidence presented at a trial is to be believed and acted upon. Juries ultimately decide whether the facts fit within a particular legal definition, according to community standards.In this way they reflect the attitude of the community in their determination of guilt or innocence.

[20] The right to trial by jury is also generally seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by the government. It is a common perception that when jurors perceive that a prosecution has these characteristics they are likely to acquit. The same point is made about trials where a law sought to be applied itself may be thought to be arbitrary or oppressive by a jury. For these reasons the jury is seen as standing between the accused and the state in a way that judges, who are sworn to apply the law, are not always able to do."

The right to trial by jury is an ancient constitutional right that should not be lightly pushed aside in the name of administrative convenience. It has a protective function and enables the community to participate in the administration of justice. In the truest sense the jury stands between an accused and the State. This historically has been for good reason - a jury stands as a protection between an accused and the State. If the community finds a law or the prosecution unjust they can say so. This is an ancient and fundamental protection.

Even those on the right who you would think have signed portraits of Garth McVicar in their living rooms have expressed concerns over such changes. Stephen Franks commended Simon Power for having “the courage to try slaughtering so many sacred cows at once” but groans about the “the loss of the right to elect trial by jury for small but important charges on matters of principle, where judges cannot be trusted to reflect the common conscience.”

The Law Society have expressed outrage over what they see as an attack on the rule of law and fundamental principles of justice. Its vice-president Anne Stevens calls the outworking of the bill in practice "repugnant" and in her written submission observed:

"All of a defendant’s rights are to ensure a fair process, for example the right to the presumption of innocence and the right to silence. These rights are largely to address the imbalance of power between the state and the individual. To ensure fairness. Efficiency and fairness are two entirely different concepts. A Bill promoted to achieve efficiency should not be used as a vehicle to remove individual’s rights."

This drive to efficiency over real fairness is the kind of thing that totalitarians dream about.

I have grave concerns about this bill, it is the spawn of populist leadership conceived in ignorance during a rights revoking climate. Like the Search and Surveillance Bill we again have foisted on us in haste another huge piece of complex legislation, pushed through with speed before people have the chance to come to grips with the implications for their rights.

National is basically bringing in legislation at lightening speed that overturns the fundamental protections that we have as individuals in a constitutional democracy. These protections have been fought for and hard won – people have shed blood for us to have these rights. Now here we are in the 21st century and we are going back on the very principles that gave us progress. Those that value their liberty should be concerned about this bill.

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